FAIR Legislative Update June 26, 2012 
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FAIR Legislative Update June 26, 2012

Supreme Court Upholds Core of SB 1070; Rules Other Provisions are Preempted

In a 5-3 decision issued Monday, the Supreme Court upheld the core provision of Arizona's immigration enforcement law, SB 1070. That provision (Section 2(B)) requires local law enforcement officers to make a reasonable attempt to determine the immigration status of an individual during a lawful stop if the officer has reasonable suspicion to believe the person is an illegal alien.  (Arizona v. United States, 567 U.S. ___ (2012).)

In upholding Section 2(B), the Supreme Court made it clear that federal immigration law allows states to require its law enforcement officers to conduct immigration status checks.  In writing for the majority, Justice Kennedy wrote:  "Congress has done nothing to suggest it is inappropriate [for state officials] to communicate with ICE..."  (Opinion at 21) "Indeed," Kennedy stated, "[Congress] has encouraged the sharing of information about possible immigration violations."  (Id.)

The Court also set aside the complaints of amnesty advocates — at least for the moment.  While acknowledging that the law could be implemented improperly [as any federal or state law could], the law had sufficient limitations that could also make its enforcement perfectly legitimate.  For example, Justice Kennedy noted that SB 1070: creates a presumption of lawful presence if an individual presents certain valid forms of identification; prohibits officers from considering race, color, or national origin, in determining reasonable suspicion whether the individual is an illegal alien; and requires the state to implement SB 1070 in a manner consistent with federal laws.  (See Opinion at 20)  "At this stage," Kennedy concluded, "without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume § 2(B) will be construed in a way that creates a conflict with federal law." (Opinion at 24)

Unfortunately, the Supreme Court struck down three other provisions of SB 1070, holding that those provisions were preempted by federal law.  The three provisions struck down were:

  • Section 3, which provides that it is a violation of state law for an illegal alien to be in violation of the federal alien registration statutes.
  • Section 5(C), which creates a misdemeanor offense which prohibits illegal aliens from applying for work, soliciting work in public places, or performing work in Arizona.
  • Section 6, which authorizes state and local police officers to conduct a warrantless arrest of an individual if the officer has probable cause to believe the person has committed a removable offense.

The Supreme Court struck down Section 3 based on the concept of field preemption.  In essence, the Supreme Court held that Congress had reserved to itself the field of alien registration in its entirety and thus states could not enact alien registration laws, even if they exactly mirror federal law.  (Opinion at 9-10)  Justice Kennedy wrote:  "Where Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible.  Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards."  (Opinion at 10)  For this reason, Kennedy argued, it does not matter that Section 3 has the same aim as federal law and adopts the same substantive language. (Id.

Alarmingly, with respect to Section 3 Justice Kennedy also appeared to adopt portions of the Department of Justice's argument that the Executive Branch has unfettered discretion to not enforce U.S. immigration law.  Kennedy reasoned that if the Court let Section 3 stand, states would have the power to bring criminal charges against individuals "for violating federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies."  (Opinion at 11)  Not only does this statement ignore the fact that the aliens would, in fact, be violating STATE law (the whole point of SB 1070), but Kennedy's statement suggests that enforcing immigration laws Congress has enacted without the executive branch's permission or input could be constitutionally questionable.  This ignores that decades of Supreme Court rulings on preemption law have clearly stated that an inquiry on preemption starts and ends with Congressional intent.

The Supreme Court struck down Section 5(C) based on the concept of conflict preemption.  This occurs when a state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."  (Opinion at 14-15)  Although Justice Kennedy acknowledged that Section 5(C) has the same goal as federal law — preventing unlawful employment — it involves a conflict in the method of enforcement.  Congress made a conscious decision, said Kennedy, to only penalize employers for hiring illegal aliens and decided not to punish illegal workers for engaging in unlawful employment.   And because Kennedy argues Congress intended this provision in the 1986 law to be a "comprehensive framework" for illegal employment, Section 5(C) of SB 1070 cannot stand. 

While the Court bases its entire analysis of the constitutionality of Section 5(C) on Congressional intent, the evidence of such intent is weak.  The best examples Justice Kennedy cites (assuming he logically chose to include the best examples in his opinion) are statements from two members of Congress, one in 1971 and another in 1973, plus a 1981 report issued by the Select Commission on Immigration and Refugee Policy.  (Opinion at 13-14)  Moreover, as Justice Scalia succinctly points out in his dissent, even if one were to assume that Congress intended to only penalize employers and not illegal aliens for engaging in unauthorized employment, there is no evidence to suggest that Congress intended to preclude states from penalizing illegal workers.  (Scalia Dissent at 17)

As with Section 5(C), the Supreme Court struck down Section 6 of SB 1070 based on the concept of conflict preemption, holding that it creates an obstacle to the full purposes and objectives of Congress.  (Opinion at 19)  However, in his analysis, Justice Kennedy completely sidesteps Congressional intent and instead focuses on the powers of the Executive Branch.  While describing in detail the statutory authority federal officers have to issue warrants and arrest immigration law violators, he makes absolutely no attempt to analyze Congressional intent about state arrest authority.  Instead, he simply argues that "authorizing state officers to decide whether an alien should be detained for being removable … violates the principle that the removal process is entrusted to the discretion of the federal government."  (Opinion at 18)  To allow Arizona to exercise such authority "without any input from the Federal Government," he says, would allow state "to achieve its own immigration policy."  (Opinion at 17)

Kennedy's argument is deeply troubling on several levels.  First, to suggest that by detaining removable aliens the state is taking control of the removal process is wholly illogical as state and local officials have no authority to deport illegal aliens.  State officials who detain illegal aliens would merely have to hand them over to the federal government for it to decide whether to deport or release.  But even more disturbing, the Court has through its analysis essentially adopted the DOJ's argument that the Executive Branch has unfettered discretion to decide whether to enforce any immigration laws and that the states have only a few limited instances to intervene, such as Section 2(B).  Clearly, the Court's reasoning in striking down Section 6 makes it clear that this Supreme Court will demand Congress enact unequivocal, express language regarding state immigration authority before it will rule otherwise. 

The Obama Administration denounced the Supreme Court's decision to uphold Section 2(B). President Obama vowed to continue circumventing Congress upon hearing of the decision: "I remain concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally…we will continue to enforce our immigration laws by focusing on our most important priorities like border security and criminals who endanger our communities, and not, for example, students who earn their education — which is why the Department of Homeland Security announced earlier this month that it will lift the shadow of deportation from young people who were brought to the United States as children through no fault of their own." (See White House Press Release, June 25, 2012)

DHS Secretary Napolitano toed the Administration's line in a separate statement: "[I]t is important to note that today's Supreme Court decision will not impact the memorandum I issued on June 15th related to prosecutorial discretion eligibility for productive members of society who were brought to the United States as children." (See Secretary Napolitano Press Release, June 25, 2012)

While House and Senate Republican leaders have largely remained silent, other members of Congress have expressed disappointment in the Supreme Court's decision:

Rep. Lamar Smith, Chairman of the House Judiciary Committee: Unfortunately, under this Administration, today's ruling essentially puts an end to immigration enforcement since the states no longer can step in and fill the void created by the Obama administration. This is especially bad news for border states since they have to deal with border violence, drug trafficking and illegal immigration. (Judiciary Committee Press Release, June 25, 2012)

Rep. Steve King, Vice-Chair of the House Subcommittee on Immigration and Policy Enforcement: "Today the Supreme Court preserved the most important component of the Arizona law…This is a significant win when it comes to efforts to increase enforcement of our nation's immigration laws. However, I have serious concerns about the other side of today's ruling, which struck down three other provisions of SB 1070." (Steve King Press Release, June 25, 2012)

Sen. David Vitter, Chairman of the U.S. Senate Border Security and Enforcement First Immigration Caucus: "All the Arizona law tried to do was fill the void that the federal government has created by neglecting its duty and letting illegal immigration get completely out of control," Vitter said. "The federal government should be working with Arizona to solve the problem, not taking it to court.  But for those of us who believe our focus should be actively enforcing the federal laws already on the books, the court's decision to uphold Arizona's ability to check immigration status is a step forward." (David Vitter Press Release, June 25, 2012)

FAIR will continue to update this story as it unfolds.  In the meantime, to learn more about the legal concept of preemption and the arguments made by Arizona and the U.S. Department of Justice (DOJ), see FAIR's primer on the oral arguments for Arizona v. United States.

Romney Fails to Offer Alternative to Obama's DREAM

Presumptive GOP presidential nominee Mitt Romney offered only a muted response to President Obama's immigration announcement last week when he addressed the National Association of Latino Elected and Appointed Officials (NALEO) Thursday afternoon during the organization's annual meeting.

In fact, instead of expressing any outrage over the President's decision to circumvent Congress and grant deferred action and work authorization to illegal aliens up to age 30, the former Massachusetts governor implied that he would also grant amnesty to illegal aliens.  Governor Romney said:

"Some people have asked if I will let stand the President's executive action. The answer is that I will put in place my own long-term solution that will replace and supersede the President's temporary measure. As President, I won't settle for a stop-gap measure.  I will work with Republicans and Democrats to find a long-term solution."

(See Romney's NALEO statement here; see also video of NALEO speech here) This statement flies in the face, however, of repeated promises he made during the Republican primary to veto the DREAM Act if elected. (See GOP Debate in South Carolina Transcript, Jan. 17, 2012; see also Romney campaign statements ABC News, Dec. 31, 2011)

Not only were the Governor's comments regarding the DREAM Act troubling, but he also disappointed true immigration reformers by promising to increase immigration at a time of record-high unemployment. First, he advocated dramatically increasing chain migration by pledging to remove the current cap on immediate relatives of legal permanent residents. Second, he promised to automatically give green cards to foreign nationals who obtain an "advanced degree" in the United States, regardless of the competition that would create for Americans graduating with the same degrees. Finally, Romney promised to grant a "path to legal status" for aliens who join the military, despite the fact that one already exists. (See Romney's NALEO statement here; see also Tampa, FL GOP Debate Transcript for statement regarding military-style DREAM Act, Jan. 23, 2012)

To all this, Romney added only a passing reference on the importance of  securing the border, implementing an entry-exit system, and requiring the use of E-Verify.

However, Romney's failure to offer a responsible, overarching immigration policy casts doubt on whether Republican Leaders will act to reverse President Obama's latest amnesty decree. Senate Republican Leader Mitch McConnell, for example, has made it clear that he would defer to the presumptive nominee on this critical issue. "I think most of my members are interested in learning what Gov. Romney has to say about this issue, and we're going to withhold judgment, most of us, until that time."  (CNN, June 19, 2012) Sen. McConnell has yet to respond to Romney's speech.

Bloomberg's Immigration Poll Misses the Mark

Media outlets provided Americans with only half the story last week when they reported widely on Bloomberg's latest immigration poll.  (Bloomberg News, June 19, 2012) That poll concluded that 64 percent of voters favored President Obama's announcement that his Administration would stop deporting certain illegal aliens. (Id.)

However, what appears to be widespread report for the President's new immigration policy is highly misleading because of the deficiency of the question at issue. The question Bloomberg actually asked respondents in its poll was the following:

President Obama announced that the U.S. would halt the deportation of some illegal immigrants if they came here before age 16, have been in the country for five years, have no criminal record, are in school or have a high school diploma or have been honorably discharged from the military. Do you agree or disagree with this new policy?  (Id.)

The phrasing of this question no doubt led to a skewed outcome in favor of the policy.  For example, the Bloomberg question asks voters whether they agree with the policy to stop deporting "some illegal aliens" who came to the U.S. "before the age of 16."  This suggests that the age limit for aliens to be eligible for "deferred action" (essentially a suspension of deportation) under the President's new policy is 16.  In fact, illegal aliens up to the age of 30 are eligible for deferred action under this policy; the alien must only establish that he or she entered the U.S. before the age of 16.  Given these aliens entered the U.S. illegally and have no documentation to prove otherwise, the potential for fraud here is great.

Another failing of the Bloomberg question is that it asks voters whether they agree with the policy to stop deporting "some illegal immigrants" who "have no criminal record."  This is NOT what President Obama's new policy states.  First, President Obama's new policy will allow Homeland Security to grant deferred action to illegal aliens if they have been convicted of two misdemeanors.  This is not the equivalent of having "no criminal record."  Moreover, a young person could repeatedly come into contact with the criminal justice system and never technically receive a "conviction," as minors are usually prosecuted through the juvenile justice system and adjudicated to be "delinquent" or "not delinquent."  (See, e.g., Office of Juvenile Justice and Delinquency Prevention, Case Flow Diagram)  And with respect to aliens who are prosecuted as adults, a misdemeanor conviction may be — and often is — the result of a felony charge that was reduced through the plea-bargain process.   An alien may also have a lengthy criminal record in another country which will not show up in a FBI criminal background check.

In addition to misrepresenting the eligibility of aliens with a criminal background, the Bloomberg question is misleading because it asks voters whether they agree with the policy to stop deporting "some illegal immigrants" who have been "honorably discharged from the military."  In general, illegal aliens are barred from serving in the military.  "Unless the current law were to be changed, or an individual were declared by the services to be vital to the national interest, the services are not permitted to enlist illegal immigrants," said a Department of Defense spokesperson. (Boston Globe, June 23, 2012) Nevertheless, the Bloomberg poll inserts service in the military into the question, undoubtedly evoking sympathy from responders.

Finally, the Bloomberg Poll was skewed in its sampling of responders. Bloomberg states it posed the question above to 734 likely voters who were weighted by age and race to reflect the general population based on recent census data.   However, Powerline points out that the respondents polled skewed in favor of Democrats. "The respondents in [the Bloomberg poll] favored Democrats 48-41. So there was a nine-point swing in favor of Democrat-leaning respondents, which, combined with the margin of error, accounts for the poll's skewed result." (Powerline, June 20, 2012)

House Approves Bill Granting Border Patrol Access to Federal Lands along Border

The House approved legislation Tuesday that would waive certain environmental laws in order to allow U.S. Customs and Border Protection (CBP) agents to gain greater access to federal land within 100 miles of the border. (Wall Street Journal, June 19, 2012; See Amdt #4 to H.R. 2578)

Currently, Border Patrol agents have the precarious responsibility of complying with federal land management laws to protect the environment while simultaneously attempting to secure the border from illegal aliens, human smugglers, and drug traffickers.  According to the Government Accountability Office (GAO), roughly 40 percent of border lands are controlled by the Departments of the Interior and Agriculture, which require Border Patrol to comply with a variety of protection laws, including the National Environmental Policy Act, the Wilderness Act, and the Endangered Species Act.  (See GAO-11-38, Oct. 19, 2010; and GAO-11-177, Nov. 18, 2010) In order to perform their duties, border agents must request environmental and historic property assessments and be given permission to proceed with their assignments.  The GAO has recommended that the government take steps to expedite Border Patrol's access to these restricted land areas. 

Amnesty advocates have nonetheless opposed granting Border Patrol the access the GAO says is necessary to protect the border and stop drug traffickers.  Calling the land-access measure a part of a larger "anti-immigrant agenda," Rep. Raul Grijalva (D-AZ) said "the solution to a broken system along the border is comprehensive immigration reform," not more enforcement. President Obama also opposed the measure through a statement, saying the provision would "thwart successful efforts by agencies to collaborate on border security while protecting our natural and cultural resources on Federal lands along U.S. borders." (Wall Street Journal, June 19, 2012; White House Policy Statement, June 18, 2012)

The provision's sponsor, Rep. Rob Bishop (R-UT), however clarified in a floor speech that his bill merely grants Border Patrol agents the access to they need to gain control of the border.  "This bill is about giving the Border Patrol access to Federal lands so they can do their Federal responsibility instead of being prohibited from fulfilling their Federal responsibility by certain Federal regulations. That's silly. That's wrong." (See Congressional Record p. H3755, June 19, 2012) 

The measure, which is a part of a larger package of land-use bills passed by the House, faces an uphill battle in the Senate. (Wall Street Journal, June 19, 2012)

Mission Viejo Reluctantly Suspends E-Verify Requirement

On Monday, the City Council of Mission Viejo, California voted unanimously to suspend its mandatory E-Verify law, City Ordinance 10-281. (OC Register, June 19, 2012) Specifically, Ordinance 10-281 required the City and its contractors to verify the legal status of employees hired after July 2007. (See 10-281 at § 2.80)

Mission Viejo was one of the first cities in the nation to pass a local E-Verify ordinance. (LA Times, Mar. 17, 2007) According to Councilwoman Cathy Schlicht, Mission Viejo's original vote was historic: "When E-Verify came forward," she said, "[Mission Viejo was] a leader on it." (See Council Meeting Video and Summary, June 18, 2012)

However, the California Legislature's passage of AB 1236 in 2011 made the ordinance unlawful by prohibiting municipalities from mandating the use of E-Verify unless required by federal law or as a condition of receiving federal funds. (AB 1236 at §2; see also FAIR Legislative Update, June 12, 2012)

During Monday's meeting, the Council heard from Mission Viejo resident Steve Serra, an attorney who provided research assistance to the City Council. (See Steve Serra Report, June 18, 2012) Serra advised council members to suspend—rather than fully repeal—Ordinance 10-281 and issue an adjoining statement declaring the council's disagreement with the state law. (Id.)

As a result, the City Council passed Ordinance 12-293 to suspend the E-Verify law. Mayor Pro Tem Rhonda Reardon announced she will draft a resolution in the coming weeks that will express the Council's dissent towards the State's anti-E-Verify law. (See Council Meeting Video and Summary, June 18, 2012)